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THIRD
SECTION
CASE OF SUCIU WERLE v. ROMANIA
(Application
no. 26521/05)
JUDGMENT
STRASBOURG
13
December 2007
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial revision.
In the case of Suciu Werle v. Romania,
The
European Court of Human Rights (Third Section), sitting as a Chamber
composed of:
Mr B.M. Zupančič,
President,
Mr C. Bîrsan,
Mrs E.
Fura-Sandström,
Mrs A. Gyulumyan,
Mr David Thór
Björgvinsson,
Mrs I. Ziemele,
Mrs I. Berro-Lefèvre,
judges,
and Mr S. Naismith, Deputy Section Registrar,
Having deliberated in private on 22
November 2007.
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 26521/05) against Romania
lodged with the Court under Article 34 of the Convention for the
Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Romanian national, Mrs Mariana Suciu Werle
(“the applicant”), on
13 July 2003.
- The
Romanian Government (“the Government”) were represented
by their Agent, Mr R. H. Radu.
- On
31 August 2006, the Court decided to communicate the application to
the Government. Under the provisions of Article 29 § 3 of the
Convention, it decided to examine the merits of the application at
the same time as its admissibility.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1927 and lives in Cornu.
- In
1950, the real estate made up of two apartments and the appurtenant
land situated in Bucharest, Regina Maria blvd. nos. 36-38, the
property of the applicant's parents, was seized by the State under
Decree no. 92/1950 on nationalisation. The applicant
continued to live in a flat situated in building no. 38 as a tenant
of the State.
- On
15 January 1996 the applicant claimed restitutio in integrum
of building no. 38 and compensation for building no. 36. On 15 June
2000, the Bucharest Town Council rejected her demand. The applicant
contested the decision before the courts.
- On
2 March 2001, the Bucharest District Court upheld the applicant's
action by a final judgment, declaring void the decision of the Town
Council and ordering the administrative authorities to return to the
applicant the real estate no. 38, made of three buildings and
appurtenant land of 208 m².
- In
2001, on an unknown date, the applicant claimed from the
administrative authorities the restitution in kind of 450 m² of
land appurtenant to buildings nos. 36 and 38. By a decision of 12
July 2002, the Bucharest Town Council allowed the application and
granted restitutio in integrum of the appurtenant land of 314
m² for no. 36 and 136 m² for no. 38.
- In
spite of obtaining judicial recognition of her property right, the
applicant was not able to recover possession of flats nos. 1 and 2 of
building no. 38 because on 30 September 1996 the State had sold them
to the tenants, under Law no. 112/1995, together with the land
appurtenant to each flat.
- On
6 February 2002, the applicant requested the court to find that the
sale by the State was null and void. She considered that the State
did not have a right of property, that it had not observed the legal
provisions of Law no. 112/1995 and that the purchasers were in
bad faith.
- On
1 February 2005, the Bucharest Court of Appeal, by a final decision,
dismissed the request for the rescission of the sale contracts on the
ground that the State had complied with the provisions of Law
no. 112/1995 and that the tenants had made the purchase in good
faith.
II. RELEVANT DOMESTIC LAW
- The
relevant legal provisions and jurisprudence are described in the
judgments Străin and Others v. Romania (no. 57001/00,
§§ 19-26, 21 July 2005), Păduraru v.
Romania (no. 63252/00, §§ 38-53, 1 December 2005),
Porteanu v. Romania (no. 4596/03, §§ 23-25,
16 February 2006), and Radu v. Romania (no.
13309/03, §§ 18-20, 20 July 2006).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1
- The
applicant alleged that the sale by the State of flats nos. 1 and 2
and the appurtenant land to third parties entailed a breach of
Article 1 of Protocol No. 1, which reads as follows:
“Every natural or legal person is entitled to the
peaceful enjoyment of his possessions. No one shall be deprived of
his possessions except in the public interest and subject to the
conditions provided for by law and by the general principles of
international law.
The preceding provisions shall not, however, in any way
impair the right of a State to enforce such laws as it deems
necessary to control the use of property in accordance with the
general interest or to secure the payment of taxes or other
contributions or penalties.”
A. Admissibility
- The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
- The
Government specified that in their view the application concerned
only the part of building no. 38 which had been sold, without the
appurtenant land and without the flat where the applicant lives,
emphasising that the applicant could also have claimed compensation
for this part. Then the Government dwelt on the difficulties
connected with the legislative evolution in the field of property and
on the new developments which had occurred after 1989. In this
respect, they considered that the latest reform regarding property,
namely the Law no. 247/2005, had aimed at restitutio in integrum
of immovable property wrongfully seized by the State during the
communist regime and, when the property could not be returned, at
granting compensation. Law no. 247/2005 grants compensation at market
value in the form of participation in a common system of placing for
movable securities, organised in the form of a joint stock company,
Proprietatea. The persons having a right to compensation will
receive securities at face value which will be transformed into
shares once Proprietatea is listed on the stock market. The
Government considered that the compensation granted once Proprietatea
is put in place is in accordance with the requirements of Article 1
of Protocol No. 1 and that the delay in the effective payment does
not impinge upon the fair balance that must be struck between the
demands of the general interest of the community and the requirements
of the protection of the individual's fundamental rights.
- The
applicant contested the Government's arguments; she specified that
she had not claimed compensation for the two flats which had been
sold because she had already obtained restitutio in integrum
for the whole building no. 38. Insisting on the abuses of the
authorities, which had sold her goods in spite of the fact that they
were not the rightful owners, the applicant considered that the
authorities should have declared null and void the sale of the two
flats, especially taking into account the decision of 2 March 2001
which confirmed her title to the entire property, including the two
flats. In her view, the non-execution of a judgment ordering the
return of property to the applicant constituted a violation of her
property right.
- The
Court has already dealt with similar cases and found a violation of
Article 1 of Protocol No. 1 (see Porteanu, cited above,
§§ 32-35). Therefore the Court does not see any reason
to disregard the cases cited above, especially since the facts are
very similar.
- The
Court reiterates that, according to its jurisprudence, the sale of
another's possessions by the State, even before the question of the
ownership had been finally settled by the courts, will be analysed as
a deprivation of possessions. This deprivation, in combination with
the total lack of compensation, is contrary to Article 1 of Protocol
No. 1 (see Străin and Others, cited above, §§
39, 43 and 59).
- Moreover,
in the case of Păduraru, cited above, the Court found
that the State had not fulfilled its positive obligation to act
efficiently and in due time as regards the issue of public interest
which is restitutio in integrum and sale of property
nationalized during the communist regime. The Court also considered
that the general uncertainty so created had reverberated upon the
applicants, who found themselves in a situation where it was
impossible to recover their property although they had an enforceable
judgment in their favour (Păduraru, cited above, §
112).
- Regarding
the Government's submission that compensation will be available once
the stock company Proprietatea starts to function, the Court
recalls its previous finding, namely that Proprietatea does
not function at present in a way that may effectively provide
compensation to the applicants (see, among others, Radu v.
Romania, no. 13309/03, § 34, 20 July 2006 and
Ruxanda Ionescu v. Romania, no. 2608/02, § 39,
12 October 2006). Moreover, neither Law no. 10/2001 nor
Law no. 247/2005 (which amends the former) takes into
account the damage implied by the prolonged absence of any
remuneration and despite a final judgment granting restitutio in
integrum (see, mutatis mutandis, Porteanu, cited
above, § 34).
- The
foregoing considerations are sufficient to enable the Court to
conclude that the deprivation in question, contrary to the rule of
law which underlies the Convention and together with the total lack
of compensation, imposed on the applicant a disproportionate and
excessive burden in breach of her right to the peaceful enjoyment of
her possessions, as guaranteed by Article 1 of Protocol No. 1.
There
has accordingly been a violation of Article 1 of Protocol No. 1.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The applicant sought restitution of flats nos. 1 and 2
and the appurtenant land, as the most appropriate manner for the
State to provide redress. Should restitution not be granted, she
claimed a sum equivalent to the current value of her property,
100 000 euros (EUR). In respect of
non-pecuniary damage she
sought EUR 5 000.
- The Government considered that the claims were
excessive and not supported by an expert report. Therefore, having
regard to their own expert report, the Government considered that the
market value of flats nos. 1 and 2 was EUR 18 816,
respectively, EUR 27 232. Further, they considered that the
finding of a violation could constitute in itself sufficient just
satisfaction for any non-pecuniary damage which the applicant may
have suffered. In any event, they considered that the amount claimed
in this respect was too high.
- The
applicant replied to the Government's expert report and submitted the
sale contracts for the two flats, agreements entered into by the
former tenants on 13 December 2006. The two flats and the land
appurtenant to each flat were sold for, respectively, EUR 49 000
and EUR 53 000.
- The
Court reiterates that a judgment in which it finds a breach imposes
on the respondent State a legal obligation under the Convention to
put an end to the breach and make reparation for its consequences. If
the internal law allows only partial reparation to be made, Article
41 of the Convention gives the Court the power to award compensation
to the party injured by the act or omission that has led to the
finding of a violation of the Convention. The Court enjoys a certain
discretion in the exercise of that power, as the adjective “just”
and the phrase “if necessary” attest.
- Among
the matters which the Court takes into account when assessing
compensation are pecuniary damage, that is the loss actually suffered
as a direct result of the alleged violation, and non-pecuniary
damage, that is reparation for the anxiety, inconvenience and
uncertainty caused by the violation, and other non-pecuniary loss
(see, among other authorities, Ernestina Zullo v. Italy, no.
64897/01, § 25, 10 November 2004).
- In
addition, if one or more heads of damage cannot be calculated
precisely or if the distinction between pecuniary and non-pecuniary
damage proves difficult, the Court may decide to make a global
assessment (see Comingersoll v. Portugal [GC], no.
35382/97, § 29, ECHR 2000 IV).
- The
Court considers, in the circumstances of the case, that the return of
the property in issue (flats nos. 1 and 2 and the land appurtenant to
each flat), as ordered in the enforceable judgment of 2 March 2001 of
the Bucharest District Court, would put the applicant as far as
possible in a situation equivalent to the one in which she would have
been if there had not been a breach of Article 1 of Protocol No. 1.
- Failing
such restitution by the respondent State, the Court holds that the
respondent State is to pay the applicant, in respect of pecuniary
damage, an amount corresponding to the current value of the property.
Having regard to the information at its disposal concerning real
estate prices on the local market and to information submitted by the
parties, the Court considers the claim justified and, consequently,
awards the full amount, namely EUR 100 000.
- The
Court considers that the serious interference with the applicant's
right to the peaceful enjoyment of her possessions could not be
compensated in an adequate way by the simple finding of a violation
of Article 1 of Protocol No. 1. Making an assessment on an
equitable basis, as required by Article 41 of the Convention, the
Court awards the applicant EUR 2 000 in respect of
non-pecuniary damage.
B. Costs and expenses
- The
applicant did not claim costs and expenses.
- The
Government did not comment on this aspect.
- Since
the applicant did not claim costs and expenses, the Court sees no
reason why an award in this respect should be made.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the application admissible;
- Holds that there has been a violation of Article
1 of Protocol No. 1 of the Convention;
- Holds
(a) that
the respondent State is to return to the applicant flats nos. 1 and 2
and the land appurtenant to each flat, situated in 2nd
District Bucharest, Regina Maria blvd. no. 38, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention;
(b) that,
failing such restitution, the respondent State is to pay the
applicant, within three months from the date on which the judgment
becomes final in accordance with Article 44 § 2 of the
Convention, the amount of EUR 100 000 (hundred thousand euros)
in respect of pecuniary damage, to be converted into Romanian lei
(RON) at the rate applicable at the date of settlement, plus any tax
that may be chargeable;
(c) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, the amount of EUR 2 000
(two thousand euros) in respect of non-pecuniary damage, to be
converted into Romanian lei (RON) at the rate applicable at the date
of settlement, plus any tax that may be chargeable;
(d) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 13 December 2007,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Stanley Naismith Boštjan M. Zupančič
Deputy
Registrar President
